Rushatam Khan, Purnea V. ACIT, Circle-3, Purnea

ITA 328/PAT/2018

• Counselvise Citation: [2022] 105 COUNSELVISE.COM (IT) 0228 (ITAT-PATNA)
• Duration Of Justice: 3 year(s) 7 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 24-07-2022
• Appeal Filed By: Assessee
• Order Result: PartlyAllowed
• Bench Allotted: DB
• Assessment Year: 2013-2014
• Appeal Filed On: 05-12-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Principle of natural justice; Set aside
• Section: 271(1)(c)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PATNA ‘DB’ BENCH AT KOLKATA [Virtual Court] Before SRI MANISH BORAD, ACCOUNTANT MEMBER & SRI SONJOY SARMA, JUDICIAL MEMBER I.T.A. Nos.: 328 & 329/Pat/2018 Assessment Years: 2013-14 & 2014-15 Rushtam Khan........................................................Appellant [PAN: AMSPK 6978 K] Vs. ACIT, Circle-3, Patna............................................Respondent Appearances by: None appeared on behalf of the Assessee. Sh. Rupesh Agrawal, Sr. D/R, appeared on behalf of the Revenue. Date of concluding the hearing : July 19 th , 2022 Date of pronouncing the order : July 25 th , 2022 ORDER Per Manish Borad, Accountant Member: The captioned appeals filed by the assessee pertaining to the Assessment Years (in short “AY”) 2013-14 & 2014-15 are directed against separate orders passed u/s 250(6) of the Income Tax Act, 1961 (in short the “Act”) by ld. Commissioner of Income-tax (Appeals), Bhagalpur [in short ld. “CIT(A)”] dated 26.03.2018. 2. Registry has informed that the appeals are time barred by 192 days. Condonation application has been filed by the assessee. After perusing the same, we find force in the reasons mentioned therein and are satisfied that the assessee was prevented for I.T.A. Nos.: 328 & 329/Pat/2018 AYs: 2013-14 & 2014-15 Rushtam Khan. Page 2 of 7 reasonable cause in filing the instant appeals. We, therefore, condone the delay and admit the appeal for adjudication. 3. The assessee is in appeal before this Tribunal raising the following grounds: Assessment Year 2013-14: “1. For that in the facts and circumstances of the case the Ld. assessing officer erred in assessing income at Rs.52,65,360/- against the returned income of Rs.11,01,554/- as well as the CIT (Appeal) has erred in confirming the assessed income. 2. For that the CIT (Appeal) erred in passing ex-parte order confirming disallowance & addition of Rs.19,025/- i.e. 10% of travelling & conveyance expenses of Rs. 1,90,248/- a sum of (Rs. 1,65,670/- +24,578/-) relevant with two business M/s Khan Traders and M/s Khan Brothers discussed, disallowed and added at Para A of the order passed by the Ld. assessing officer based on adhoc, presumption, surmise, inference and ignoring facts and circumstances of the case. 3. For that the CIT (Appeal) erred in passing ex-parte order confirming disallowance and addition of Rs.8125/- i.e. 10% of travelling & conveyance expenses of Rs. 81,950/- a sum of (Rs.62,988/- + 18,962/-) relevant with two business M/s Khan Traders and M/s Khan Brothers discussed, disallowed and added at Para B of the order passed by Ld. assessing officer based on adhoc, presumption, surmise, inference and ignoring facts and circumstances of the case. 4. For that the CIT (Appeal) erred in passing ex-parte confirming adoption of higher valuation Rs. 34,05,000/- & Rs.30,50,000/- i.e. government value relevant to two property adopted for ascertaining capital gain by Ld. assessing officer in passing his order ignoring & setting aside facts of presence of lower actual sale consideration Rs. 13,00,000/- & Rs. 15,00,000 on records. 5. For that the CIT (Appeal) erred in passing ex-parte order confirming disallowance and addition of Rs.5,14,090/- i.e. 25% of cost of improvement of Rs. Rs. 20,56,360/- a sum of (Rs.9,90,560/- & Rs. 10,65,800/-), relevant to two sold property discussed, disallowed and added as per Para C of the order passed by Ld. assessing based I.T.A. Nos.: 328 & 329/Pat/2018 AYs: 2013-14 & 2014-15 Rushtam Khan. Page 3 of 7 on adhoc, presumption, surmise, inference and ignoring facts and circumstances of the case. 6. For that the CIT(Appeal) as well as the Ld. assessing officer have erred in not exercising the mechanism of valuation provided in the act before disallowing Rs. 5,14,090/- 10% of total development expenses taken by the appellant in calculation of capital gain. 7. For that the CIT (Appeal) grossly erred in passing ex-parte order confirming levy and demand of interest u/s 234A, 234B, 234C levied and demanded in the order passed by the Ld. assessing officer is unjustified and illegal. 8. For that the CIT (Appeal) erred in passing ex-parte order confirming initiation of penal proceeding under section 271(1)(c) based on the order passed initiated by the Ld. Officer is wholly misconceived, arbitrary, unjustifiable and illegal. 9. For that the CIT (Appeal) erred in passing ex-parte order by not following principal of natural justice and the Ld. assessing officer also erred in passing order by not following principal of natural justice. 10. For that the assessment order passed is wrong, arbitrary and unjustified in the facts and circumstances of the appellant case. 11. For that the order of CIT (Appeal) and of Ld. assessing officer is bad in law as well as fact and fit for set aside. 12. For that the petitioner does not leave craved for additional grounds, if any, be urged at the time of hearing.” Assessment Year 2014-15: “1. For that in the facts and circumstances of the case the CIT (Appeal) has erred in passing ex-parte order confirming the assessed income Rs.80,38,338/- assessed by Ld. assessing officer against the returned income of Rs.13,23,730/-. 2. For that the CIT (Appeal) erred in passing ex-parte order confirming disallowance & additions of Rs. 12,578/- i.e. 10% of direct expenses Rs.1,25,780/- of M/s Khan Brothers discussed, disallowed and added as per Para A of the order passed by the Ld. assessing officer in passing order based on adhoc, presumption, surmise, inference and ignoring facts and circumstances of the case. I.T.A. Nos.: 328 & 329/Pat/2018 AYs: 2013-14 & 2014-15 Rushtam Khan. Page 4 of 7 3. For that the CIT (Appeal) erred in passing ex-parte order confirming disallowance & additions of Rs. 15,253 i.e 10% of Freight Outward Expenses Rs.1,52,533/- of M/s Khan Brothers discussed, disallowed and added as per Para B of the order passed by Ld. assessing officer in passing order based on adhoc, presumption, surmise, inference and ignoring facts and circumstances of the case. 4. For that the CIT (Appeal) erred in passing ex-parte order confirming disallowance & additions of Rs. 10,856 i.e 10% of Travelling & Conveyance Expenses Rs. 1,08,564/- of M/s Khan Brothers discussed, disallowed and added as per Para C of the order passed by the Ld. assessing officer in passing order based on adhoc, presumption, surmise, inference and ignoring facts and circumstances of the case. 5. For that the CIT (Appeal) erred in passing ex-parte order confirming disallowance & additions of Rs. 17,452/- i.e. 10% of direct expenses Rs.1,74,520/- of M/s Khan Traders discussed, disallowed and added as per Para D of the order passed by the Ld. assessing officer in passing order based on adhoc, presumption, surmise, inference and ignoring facts and circumstances of the case. 6. For that the CIT (Appeal) erred in passing ex-parte order confirming disallowance & additions of Rs. 14,071/- i.e 10% of Freight Outward Expenses Rs.1,40,712/- of M/s Khan Treaders discussed, disallowed and added as per Para E of the order passed by Ld. assessing officer in passing order based on adhoc, presumption, surmise, inference and ignoring facts and circumstances of the case. 7. For that the CIT (Appeal) erred in passing ex-parte order confirming disallowance & additions of Rs. 17,308/- & 16,890/- aggregating Rs.34,198/- towards VAT payable by M/s Khan Brothers & M/s Khan Traders respectively which was discussed, disallowed and added as per Para F of the order passed by the Ld. assessing officer in passing order based on adhoc, presumption, surmise, inference and ignoring facts and circumstances of the case. 8. For that the CIT (Appeal) erred in passing ex-parte order confirming capital gain Rs.66,10,200/- discussed, disallowed and added as per Para G of the order passed by the Ld. assessing officer without allowing benefit of indexation available to the assesses ignoring the facts available on record. 9. For that the CIT (Appeal) erred in passing ex-parte confirming adoption of higher valuation Rs. 33,10,200/- & Rs.33,10,200/- i.e I.T.A. Nos.: 328 & 329/Pat/2018 AYs: 2013-14 & 2014-15 Rushtam Khan. Page 5 of 7 government value, relevant to sale of two property, adopted for ascertaining capital gain by Ld. assessing officer in passing his order ignoring & setting aside all facts about actual sale consideration which has been received by the appellant. 10. For that the CIT (Appeal) grossly erred in passing ex-parte order confirming levy and demand of interest u/s 234A, 234B, 234C levied and demanded in the order passed by the Ld. assessing officer, is unjustified and illegal. 11. For that the CIT (Appeal) erred in passing ex-parte order confirming initiation of penal proceeding under section 271(1)(c) based on the order passed initiated by the Ld. Officer is wholly misconceived, arbitrary, unjustifiable and illegal. 12. For that the CIT (Appeal) erred in passing ex-parte order by not following principal of natural justice and by the Ld. assessing officer passing his order. 13. For that the assessment order passed is wrong, arbitrary and unjustified in the facts and circumstances of the appellant case. 14. For that the order of CIT (Appeal) and of Ld. assessing officer is bad in law as well as fact and fit for setting aside. 15. For that the petitioner does not leave craved for additional grounds, if any, be urged at the time of hearing.” 4. When the case was called for, none appeared on behalf of the assessee. A perusal of the records shows that a number of opportunities have been given to the assessee but there is no compliance. It seems that the assessee is not interested to pursue the appeal and, therefore, we decide to adjudicate the appeals with the assistance of ld. D/R and the available records. 5. Ld. D/R vehemently argued supporting the orders of both the lower authorities. 6. We have heard ld. D/R and perused the records placed before us. I.T.A. Nos.: 328 & 329/Pat/2018 AYs: 2013-14 & 2014-15 Rushtam Khan. Page 6 of 7 7. Before adverting to the grounds raised on merits, we on perusal of the records, find that the assessee declared income of Rs. 11,01,554/- and Rs. 13,23,730/- in the e-return filed for AYs 2013-14 & 2014-15 on 31.03.2014 & 16.03.2015, respectively. Ld. AO, based on the information received from the Investigation Wing about certain transactions, selected the case for scrutiny and made the addition assessing the income at Rs. 52,65,360/- & Rs. 80,38,340/- for AYs 2013-14 & 2014-15, respectively. The assessee challenged the additions before ld. CIT(A) raising various grounds. 8. However, on perusal of the impugned orders, we find that the assessee was unable to furnish necessary details in support of its grounds raised before ld. CIT(A) and in the absence of these details ld. CIT(A) proceeded to decide the appeal. 9. We, therefore, looking to the issues involved, certain new grounds raised by the assessee before this Tribunal and also in the interest of justice and being fair to both the parties and in order to facilitate to assess the correct income of the assessee, restore all the issues raised in the instant two appeals to the file of the ld. CIT(A) for afresh adjudication with the direction to the assessee to furnish necessary details as and when called for and should not take adjournments unless otherwise required for reasonable cause. We, further direct ld. CIT(A) to examine the issues in light of the documents and submissions made by the assessee, if provided, and in case the assessee fails to furnish necessary details even after providing reasonable opportunity then ld. CIT(A) can proceed as per law. I.T.A. Nos.: 328 & 329/Pat/2018 AYs: 2013-14 & 2014-15 Rushtam Khan. Page 7 of 7 10. In the result, both the appeals of the assessee for AYs 2013- 14 & 2014-15 are allowed for statistical purposes. Kolkata, the 25 th July, 2022. Sd/- Sd/- [Sonjoy Sarma] [Manish Borad] Judicial Member Accountant Member Dated: 25.07.2022 Bidhan (P.S.) Copy of the order forwarded to: 1. Rushtam Khan, N.H. 31, Sanauli Chowk, Gulalbagh, Purnea-854 326. 2. ACIT, Circle-3, Patna. 3. CIT(A)- Bhagalpur. 4. CIT- 5. CIT(DR), Patna Bench, Patna. True copy By order Assistant Registrar ITAT, Kolkata Benches Kolkata